Friday, October 31, 2008

ARCA (The Association for Research into Crimes against Art) has announced a new Masters Program in international art crimes studies. The first program will start next May in Italy; the application deadline is Dec. 1. See here for more information.

The story notes that "Canadian art observers doubted Horton would get her price," and at $50 million I'm sure that's right, but how much should someone be willing to pay for the chancethat the work is someday accepted as a real Pollock? How much is that lottery ticket worth?

Derek Fincham points to this story of a mother-and-son team of art dealers in New Orleans whose scam was to "buy inexpensive Chinese paintings from wholesale distributors and then market and sell them, at a large profit, as works created by [fictional] Louisiana artists." They've each pleaded guilty to conspiracy to commit mail fraud and face fines of $250,000 and up to five years in prison. Sentencing is scheduled for January.

Derek draws a familiar lesson: "Do not buy art as a tourist, if you are spending more than a thousand dollars, make sure you educate yourself about the dealer and the artist."

The bankruptcy court has approved the retention of Gurr Johns to help Salander-O'Reilly sell off the more than 4,000 artworks it owns in order to pay creditors. (Approximately 400 creditors have filed claims totaling more than $300 million.) According to Bloomberg's Philip Boroff, "Gurr Johns will receive a retainer of $10,000 a month, plus $300 an hour for court appearances plus 2.5 percent commission on proceeds for sales up to $30 million. If sales exceed $30 million, commissions increase on a sliding scale."

Thursday, October 23, 2008

Tyler Green's been doing a whole series on the flag in contemporary art (start here). From an art law perspective, the key cases are Texas v. Johnson, 491 U.S. 197 (1989), and United States v. Eichman, 496 U.S. 310 (1990), which established that flag-burning is constitutionally protected speech. In his Law, Pragmatism, and Democracy, Judge Posner adds the following:

"Some of the Justices dissented on the ground, which failed to persuade most students of constitutional law (myself included) that the flag is a unique national symbol, which the government should be empowered to protect from being desecrated. To a pragmatist the dissenters' argument is stronger today in the wake of the September 11, 2001 terrorist attacks .... This is not because burning the flag is likely to increase the terrorist threat; not at all. The issue is offensiveness, not danger. But offensiveness is, as I have said, a common basis for permitted restrictions of freedom of speech .... Yet if Congress again passed a law against flag-burning, I think the Supreme Court would again strike it down. Not out of devotion to stare decisis ... but simply to demonstrate that the Court doesn't buckle under pressure. If this conjecture is right, it suggests an essential arbitrariness to law that formalists should find intensely disquieting and that supports the pragmatist's belief that logic is indeed not the life of the law. Much of the law seems to depend on accidents of timing .... If the first flag-burning case had not come to the Court until the autumn of 2001, there might today be no constitutional right to burn the flag."

Wednesday, October 22, 2008

The Art Newspaper reports that Phillips de Pury will be representing photographer Annie Leibovitz. Phillips already represents the estates of photographers Helmut Newton and Guy Bourdin, but this is the first time it will represent a living artist. According to the article, Phillips "would not disclose what commission it will take ..., although it is unlikely to vary dramatically from the usual contemporary gallery level of around 50%."

Both Lee Rosenbaum and Richard Lacayo pick up on Christopher Knight's post last week on Gov. Rendell's comment that "I think it's been 14 or 15 years since Ray Perelman first came to me with this idea to move the Barnes." Lee is "suprised" by the statement: apparently, while "Perelman's feelings about the project have long been known," what "wasn't previously revealed so explicitly was his direct and early role in lobbying the Governor on behalf of the move." Richard says "it appears that for a long time the Barnes has been a jewel that Philadelphia was angling to grab," and he seems to think the Governor's comment is somehow inconsistent with "the standard story line ... that the move to Philadelphia ... was made necessary by the budget crisis that overtook the place around 2000."

I still don't see what all the excitement is about. As I said on Friday, I don't think anyone ever pretended that the Barnes's financial problems suddenly appeared "around 2000." The "pressing financial difficulties at the foundation" were certainly widely known well before then.

Similarly, Perelman's role in the process has never been a secret either. From a story in the Philadelphia Inquirer a few years ago (May 22, 2005, page A1, I can't seem to find a free link):

"The idea struck businessman Raymond Perelman on a blustery November night in 1995, as Philadelphia society toasted the reopening of the Barnes gallery after a world tour of 80 of its masterpieces. ... Perelman contemplated the breadth and depth of the collection, and a ... thought occurred to him: Why not move this fabulous art downtown, nearer the Art Museum, where more people could see it? ... Among the 500 others dining that night on lamb chops were many with whom he would share his vision."

Among those lamb-chop eating sharees of Perelman's vision were (1) Mike Fisher, who, "as state attorney general, would use his office to support the move," and (2) David L. Cohen, "then Mayor Ed Rendell's chief of staff." The Inquirer continues:

"Perelman would become chairman of the Philadelphia Art Museum in 1997 and share his vision with Rendell, who loved it. The mayor even picked a site: the Youth Study Center on the Parkway, an easy walk from the Art Museum. 'The seed was planted,' Perelman said recently. 'And once the seed was planted, it was growing.'"

Look, there are plenty of reasons for people to be upset about the Barnes move. (I posted some thoughts on the subject here.) But this latest game of "gotcha," based on Gov. Rendell's comment last week, strikes me as misguided.

Friday, October 17, 2008

Christopher Knight finds it significant that, at Wednesday's ground-breaking ceremony, Gov. Rendell mentioned that "it's been 14 or 15 years since [art patron] Ray Perelman first came to me with this idea to move the Barnes." The implication seems to be that this revelation is inconsistent with the official story told by supporters of the move -- namely, that "the financial crisis facing the Barnes Foundation circa 2000 was the reason ... [it] was being uprooted from its rightful suburban home and moved to ... downtown Philadelphia" (or, as a former lawyer for opponents of the move put it in a "blistering" letter to Rendell which Knight quotes in his post, the remarks "made short shrift of the Barnes’ Foundation phony argument of a sudden lack of funds").

But I've certainly always had the impression that the financial difficulties started long before 2000. In fact, there was almost never a time when the Barnes wasn't in financial trouble. This LA Times article, for instance, points out that "the Barnes endowment, $10 million in 1951, was so poorly invested that it was still $10 million almost four decades later." And here's a piece, from 1991, by Michael Kimmelman that begins: "Its famous collection of paintings must be worth hundreds of millions of dollars, but the budget from the Barnes Foundation's $10 million endowment barely covers the cost of keeping open its deteriorating galleries for a few days each week." The then-president of the foundation wondered aloud about "trying to undo Dr. Barnes's stricture against selling works from the collection, so that pressing financial difficulties at the foundation could be quickly addressed": "The restoration and modernization of the building that houses the collection of some 1,000 works is only one of the urgent problems. The roughly $10 million endowment, which Mr. Glanton says produces an annual budget of about $1 million, cannot begin to solve these problems."

Given that history, I don't know why anyone would be surprised to learn that people were talking about a possible move in the mid-90's.

Thursday, October 16, 2008

Sergio calls my attention to this story from a few weeks back about the use in an Anthropologie store in downtown Seattle of some work that looks a lot like a work created by a couple of artists and shown at a Portland, Maine nonprofit art space called The Map Room in 2005. (There are pictures of the two works at the story link.)

One of the artists is quoted as saying, "We had no rights because the piece that we did was in a nonprofit context," adding that if his work "had worn a pricetag and shown in a commercial gallery ..., [then] the artists could sue for copyright infringement."

There's a technical legal term for that: crazy talk.

There's absolutely no distinction for copyright purposes between works created and shown in a commercial gallery and works created and shown in nonprofit spaces (like, say, museums). Now, there may well have been good reasons for concluding that a lawsuit wasn't worth pursuing here, but it's simply not the case that this work was somehow ineligible for copyright protection because it was done "in a nonprofit context."

From the AP: "Construction of The Barnes Foundation's new downtown home is slated to be complete by the end of 2011, a timetable that comes after years of legal battles over the future of the foundation and its multibillion-dollar art collection. Demolition of a former juvenile jail on the site is slated to begin this winter, with construction to start in fall 2009, officials announced at an event Wednesday evening. Interior work will begin after that, but no official opening date was set."

Friends of the Barnes member Robert Zaller is quoted as calling the move "a criminal conspiracy to bring about the biggest art heist since the Second World War" and vowed to keep fighting "until we stop it."

Mayor Michael Nutter said: "For all the hooting and hollering about the prospect of the Barnes coming to the parkway, there was a lot of hooting and hollering (by its neighbors) wanting them to shut down and leave. ... Sometimes you have to be a little careful what you wish for."

Wednesday, October 15, 2008

In response to this post about his dispute with Sotheby’s, Halsey Minor sent me the following email (and permission to print it):

"Donn, just a few small facts you may wish to bear in mind. I do not live in New York. I split my time between San Francisco and Los Angeles. I have 5 kids in 2 cities and I have 10 companies and I like to collect — in many areas.

"The way I thought it was supposed to work was that people like me would not need to read every periodical on the planet so that we would have the background on the owner of every work of art we may wish to buy. I thought the millions of dollars I pay the auction houses every year was because they did the research for me. According to you its my responsibility, yet I pay Sotheby’s 15%. If you are right I need to stop collecting because I don’t have the time to do the research.

"I probably bid on 25 items that auction season across contemporary, design and American in New York, London and Paris and if you want me to be responsible for what I considered to be their job then you can kiss 95% of the auction buyers goodbye. We have lives and we pay the premium to be informed and protected. Clearly you think the auction houses should get paid for just existing (why call your people specialists then?) and people like me should dedicate our lives to reading every conceivable article, blog, tv show, etc. Because auction houses really don’t have specialists, it’s buyer beware. If your opinion prevails then there is no art industry any more. The more busy you are the more likely you are to have the money to buy art.

"I am quite frankly shocked that you don’t hold auction houses accountable for providing the most basic information to their customers."

I wrote back that I thought my post was pretty neutral, but that I would be remiss if I did not mention the fact that the auction house's interest had been publicly disclosed ahead of the sale; readers can make up their own minds as to what difference that should or should not make. I also said the point I was making at the close of the post was not that he had an obligation to "read every conceivable article, blog, tv show, etc," but rather that -- to the extent one buys into some version of the efficient market hypothesis for artworks -- we can assume that this widely publicized piece of information was fully reflected in the price of the work. What makes this case worth following is that it presents two questions that, to my knowledge at least, have not been answered before: (1) Is Sotheby's correct that a lot-by-lot disclosure of security interests is not required? and (2) Does the kind of relationship he had with his contact there give rise to the sorts of duties he claims Sotheby's owed to him? It’s clear Halsey thinks those are easy questions, but I'm not so sure.

To which he gave the following response (and I’ll stop here because this post is long enough):

"You must remember that for there to be an efficient market the market maker cannot withhold at their discretion information relevant to price. If you were to see the emails the court will see, what I believe is an obvious case will only become more so. How can they disavow a ‘financial interest’ when they needed the money to get repaid in what is clearly a very dicey situation? Lastly, you have not looked at the law on the books but if you do you will see that even when they claim to disclose, their disclosure is inadequate. If you want to see it done right, then look at Christies’ disclosure. Why the difference?

"Sotheby’s has subjected themselves and their shareholders (hence the steep decline in stock price) to massive liability all because they could not admit they were wrong and discuss a solution like gentlemen. I didn’t file the lawsuit. I was just waiting for them to prove their case with documents which they claimed they were going to send. Instead of getting documents I was blindsided with a Federal lawsuit and a bunch of PR hyperactive people describing conversations they never took part in and were simply white boarded over the weekend as ‘a pr strategy.’ I am afraid the government only cut the head off of this snake. I think they have now set themselves up so that the rest of their behavior, well known to the industry, can get cleaned up. Its just too bad stockholders had to pay for so much hubris."

Interesting rescission decision [$] in today's NY Law Journal in a state court case involving Christie's. In 2002 a company called SWCA signed an agreement with Christie's authorizing them to sell a Picasso sculpture for $5 million. The agreement granted Christie's the right to rescind the sale if it "reasonably determines that the sale may expose Christie's" to any liability, "including liability resulting from claims relating to ... authenticity." A few days later Christie's sold the work, and the agreement with the buyer allowed him to rescind the sale if the work was found to be inauthentic. A couple years later, Christie's "developed concerns about the authenticity" of the work, believing now that it is "a surmoulage, a bronze cast of a second or third generation bronze, rather than ... a bronze cast from the original clay master created by Picasso." According to the court, "most dealers consider surmoulages to be unauthentic." So in 2005 Christie's rescinded its sale to the buyer; it also sought a refund of the portion of the purchase price it had paid to SWCA. SWCA, which had a certificate of authenticity from the author of the catalogue raisonne of Picasso's sculpture and another from Picasso's son Claude, refused, and the lawsuit followed. Though the court expressed a fair degree of skepticism about the reasonableness of Christie's belief that it was exposed to liability (it said the decision "appears to have motivated more by rumor and speculation"), it held that "ultimately, whether Christie's belief was reasonable is a question of fact for the fact-finder," and so denied summary judgment. So, barring a settlement, it's on to trial.

In today's New York Law Journal, Joseph Gioconda argues that "the art community can learn from the actions taken by the luxury goods and consumer products industries as they face a similar threat from counterfeiters. These industries respond by demanding stricter penalties for offenders and stronger federal anticounterfeiting laws. ... Members of the art community can begin to combat forgers using some of the same federal anticounterfeiting laws, but to date they have not done so effectively."

Nashville Public Radio reports that "the famous Stieglitz collection at Fisk University is in the public eye for the first time in nearly three years. ... The school had to meet a court deadline last week to put the art back on public display." (Chancellor Lyle's March decision gave the school until Oct. 6 to renovate the gallery and put the collection back on view.) Hours are 10-to-5 Tuesday through Saturday, so plan accordingly.

Monday, October 13, 2008

Lee Rosenbaum had an update on Friday on Halsey Minor's battle with Sotheby's. Minor has filed an answer and counterclaim to Sotheby's breach of contract action in the Southern District of New York, and he's also filed a class action complaint in federal court in San Francisco. (Sotheby's has moved to enjoin the California lawsuit.) In both venues, he makes essentially two arguments:

1. The first is that Sotheby's didn't adequately disclose its economic interest in the work in the auction catalogue. (It had served as collateral for a loan to the consignor, Ralph Esmerian.) Sotheby's takes the position that the relevant New York City regulations do not require that such disclosure be made on a lot-by-lot basis: all that must be disclosed is the general practice of making loans to consignors. They say this interpretation was specifically blessed by the NYC Department of Consumer Affairs.

2. The second argument is that, separate and apart from the specific requirements of the regulations, Sotheby's had in this case "disguised itself as a sincere and honest art adviser to [Minor], while in reality acted as a self-profiter." The argument here is that, over time, Minor had formed a relationship with an employee in Sotheby's American Paintings Department in which she acted as his "art consultant and purchasing agent." Minor says he came to trust her, and "relied on her to provide him with honest advice in his dealings in the art market." Yet she too concealed from him the fact that Sotheby's had an interest in the subject painting.

One odd note, for all the talk of non-disclosure, is that, as Lee points out, Sotheby's interest in the painting had been mentioned in articles in the New York Times and Bloomberg (and perhaps other publications). Carol Vogel's widely-read "Inside Art" column on April 18 began: "The tumultuous saga of the jeweler Ralph O. Esmerian, who owes some $187 million to Merrill Lynch, $11.5 million to Sotheby’s and $7.5 million to Christie’s, continues. He is scheduled to pay down a chunk of his Sotheby’s debt on May 22 when that auction house sells his Edward Hicks painting 'The Peaceable Kingdom With the Leopard of Serenity.'" It continued: "When he took out loans, starting in 2005, to purchase the Fred Leighton retail jewelry business, ... he used his art and jewelry as collateral. He stopped making payments in the fall, and [Sotheby’s] decided to sell the Hicks painting." Esmerian himself was quoted as saying,"We believe that the proceeds will satisfy the loan. But if there is a remaining balance, Sotheby’s will give us over a year and a half to pay them back." If you accept any kind of efficient market hypothesis for art, it's hard to believe that information wasn't fully absorbed into the price of the work.

From ARTINFO: "Artist Ed Strossis facing 30 days in jail, two years probation, and a $500 fine for adding the word 'love' to his own mural in Roseville, Mich., a Detroit suburb." The ACLU is apparently making a last ditch effort to get the case re-heard.

The Legal Satyricon describes how we got here. It seems the Michigan Court of Appeals had overturned Stross's conviction on the grounds that the ordinance in question was an unconstitutional restriction of his First Amendment rights. But the Michigan Supreme Court reversed, on timeliness grounds:

"At the time defendant’s variance was granted, then-current MCL 125.585(11) required a party to challenge the constitutionality of the variance within 21 days. Defendant’s painting the word 'LOVE' on the sign clearly violated the 'lettering' condition of the variance. Because this statute prescribed the relevant procedure for challenging the constitutionality of the conditions, defendant was obligated to challenge these conditions in accordance with this procedure. His failure to do so precludes him from raising his constitutional challenge eight years later."

Bloomberg reports that a former Enron exec is being sued by a New York gallery "for allegedly trying to extort more than $150,000 by claiming a painting he bought was a forgery. Historical Design, Inc., an art gallery on East 61st Street in Manhattan, said Shankman purchased three works of art in November 1997 for $40,000. The gallery said Shankman complained this year that one of them ... was a fake. He threatened to 'go public' unless he was paid least $150,000, the gallery said in court papers."

The case actually raises some interesting issues involving the law on extortion. As lawprof Jim Lindgren points out, "someone with an underlying legal claim may threaten to expose it to reach a reasonable settlement. Yet if the amount sought is so substantially out of line with the injury and the threat to embarrass is a big part of the threat, then a criminal charge of extortion can be established." He mentions the case of Autumn Jackson, "who may have been [Bill] Cosby's [out-of-wedlock] daughter, [and who] threatened exposure unless he paid her $40 million. Despite having some possible claim for support as a child, she was convicted because of the excessiveness of her claims and the threats of exposure."

So one issue in the case will be: where did Shankman get his $150,000 figure? Is that out of line with his (claimed) injury? Or is it a good faith estimate of his damages, with the threat to expose the gallery merely a secondary issue?

An art law story in, of all places, the sports pages of the New York Daily News: Wayne Coffey looks at New York's proposed "dead celebrities bill," focusing on the case of tennis legend Arthur Ashe. He reports that the legislation "is expected to be reintroduced in January," and adds:

"The Authors Guild, the nation’s largest society of published authors, among other arts organizations, has lobbied hard against the bill, viewing it as a massive assault on the First Amendment. Other detractors insist it is nothing but a greed-driven, legal gambit by Marilyn Monroe LLC, a company that successfully got a dead-celebrities bill passed in California last year, and is now turning its attention to New York, aiming to elbow photographers who own Monroe photos out of their way."

For another vote for the greed-driven-gambit-by-a-single-company theory, see here.

Thursday, October 09, 2008

Gregory Gibson, author of Hubert's Freaks (about Bob Langmuir's Arbus photos), criticizesthis post of mine (as well as "nearly every other article on the affair") for "characteriz[ing] Bayo Ogunsanya as an innocent 'collector,'" when the truth is that "as Bayo admitted to me himself, he was a dealer who for years had been buying items at storage unit auctions and selling them at flea markets, ephemera shows and on eBay."

I should say in defense that I wasn't "characterizing" Ogunsanya one way or the other: I was merely quoting from the court's decision, which, coming as it did on a motion to dismiss the complaint, accepted Ogunsanya's version of the facts (see footnote 1 of the decision: "The facts set forth here are contained principally in the complaint. As I must, I accept them as true for purposes of this motion").

Beyond that, it's not clear how much turns on the correct characterization of Ogunsanya. In section C of the decision, the court takes on Langmuir's argument that "the identity of Diane Arbus as the photographer was not a matter peculiarly within his own knowledge, and Ogunsanya could have found it out for himself." In rejecting that argument, the court points out, first, that "in the absence of 'hints of . . . falsity' that might trigger a heightened requirement of diligence, Ogunsanya was not required to exercise due diligence." It then adds that "it is not enough for Langmuir to show that the identity of the photographer was not peculiarly within his knowledge. He must further show that the means of obtaining that knowledge were available to Ogunsanya by the exercise of ordinary intelligence" -- yet, here, "only those intimately familiar with Arbus's technique - scholars, experts, and curators - would be qualified to attribute these 'lost' photographs to Arbus. Indeed, at the time of Langmuir's purchase, even the most comprehensive catalogue of Arbus's oeuvre would not have included these prints." It is only after setting out these general principles -- which don't really depend on any particular characterization of Ogunsanya -- that the court (which, again, is constrained at this stage of the proceedings to accept Ogunsanya's version of the facts) mentions that he was "an unsophisticated memorabilia collector who simply bought a trunk at storage house auction." But it's certainly possible to read this section of the decision as suggesting that, if Ogunsanya could not have discovered that the photos were by Arbus "by the exercise of ordinary intelligence," then Langmuir's argument fails even if Ogunsanya is more accurately characterized as a dealer than a collector.

Monday, October 06, 2008

In today's New York Times, the "indispensable" Kate Taylor reports on a series of lawsuits surrounding a 4,000-piece collection of tribal art from New Guinea that is "generally regarded as the best of its kind in private hands." The collection had been promised by John Friede to the de Young Museum in San Francisco, but "litigation in three states, with [Friede's] two brothers, the museum and Sotheby’s auction house all laying claim to the art," has put the gift in doubt.

A motion to dismiss was denied [$] last week in the case of the memorabilia collector who claims he was duped into selling a bunch of previously unknown Diane Arbus photographs for $3,500. See earlier posts here, here, and here (where I noted that "the buyer's lawyer calls the suit 'frivolous,' but if the plaintiff can show that the buyer did in fact know the works were by Arbus, he would seem to have a pretty good claim of 'unilateral mistake'").

This strikes me as the key point: summarizing the allegations in the complaint (which on a motion to dismiss it accepts as true), the court notes, "Shortly before filing suit, Ogunsanya learned that Langmuir knew back in 2002 that he was purchasing extraordinarily valuable works of art by Diane Arbus. Langmuir admitted to a Philadelphia Inquirer reporter that he knew the photographs were rare Diane Arbus prints before the second transaction with Ogunsanya. Langmuir told the reporter that at the time of the second transaction, he tried to 'stay calm,' but he was 'burning up.'"

That must be a reference to this story, from February of this year. It begins by talking about how he bought a circus trunk in 2003 containing "what he felt were rare Arbus prints." It then mentions that he showed them to a photography curator at the Met, who wasn't sure. And then it says:

"Meanwhile, Langmuir learned there was much more to the collection. He returned to Brooklyn, and the dealer - a Nigerian named Okie - handed him a second envelope of photos. Langmuir tried to stay calm. He was burning up. He peeked inside, and saw 19 more prints, and a note, written in the same handwriting he'd found in Lucas' address books: 'Pictures enclosed for you, Suzie and Dingo. (Went to Amusements of America Carnival in Hagerstown, MD. I saw my first geek.) Diane.' That was the Eureka! moment."

The San Francisco Bay Guardian politics blog had an item yesterday on the orphan works bill:

"The bill would deem 'orphaned' any copyrighted work whose author can’t be located by a 'reasonably diligent search.' Artists fear that vague standard could allow individuals and corporations to steal artwork for any personal or commercial purpose after going through the motions of search. The artwork could then to deemed part of the public domain, preventing creators from claiming ownership and compensation for their work."

Again, I think this overstates the case. First, if the copyright holder discovers the use, she will in most cases be entitled to "reasonable compensation." (Which is not nothing: what is the counterargument -- that she should be entitled to unreasonable compensation?) And second, an unsuccessful search doesn't forever throw the work into the public domain or "prevent[] creators from claiming ownership." The overall copyright status of the work doesn't change.

Meanwhile, Editor & Publisher is reporting that, contrary to earlier reports, the bill might come up for a vote in the House as early as today.

Wednesday, October 01, 2008

Another day, another frustrating VARA decision. This time, it was in artist Chapman Kelley's lawsuit against the Chicago Park District for removing his work from a local park. Story here. After a bench trial, the district court has ruled that VARA did not apply, for two reasons:

1. It held that the work was not "original" enough to qualify for protection under the Copyright Act:

"On the last point [i.e., originality], this Court agrees with the Park District. It is not clear what about the exhibit is original. Is it the elliptical design? The size? The use of native instead of non-native plants? ... Kelley leaves this Court to assume that he is the first person to ever conceive of and express an arrangement of growing wildflowers in ellipse-shaped enclosed area in the manner in which he created his exhibit. ... Without any evidence differentiating Kelley's work from, for example, the oval wildflower beds of Monticello, this Court can only find that [the work] is not subject to copyright protection. Therefore, it is not protected under VARA."

This is just wrong. As the Supreme Court noted in Feist Publications, Inc. v. Rural Telephone Service, Co., "the originality requirement is not particularly stringent." Just two things are required: "[1] that the work was independently created by the author (as opposed to copied from other works), and [2] and that it possesses at least some minimal degree of creativity." A work satisfies the first test ("independent creation") so long as it was not literally copied from an existing work. Kelley clearly passes this test: there isn't another wildflower work somewhere out there in the world which he merely duplicated. The second test ("creativity") sets an "extremely low" bar that Feist tells us is cleared "quite easily by "[t]he vast majority of works." It requires only that a work "possess some creative spark, 'no matter how crude, humble, or obvious it might be.'" Kelley certainly clears this bar as well, as the court's own decision demonstrates: in a later section, it discusses "the theoretical concepts that motivated Kelley's design and placement" of the work, how he "wanted a location that would create a contrast between the linearity of the urban grid, the rondure of the elliptical gardens, and the entropy of the wildflower beds," how, before installing the work, he "hired helicopters and airplanes so that he could survey Chicago from the air, and drove around the city extensively to find a place that would express his artistic vision," and how he designed the work to incorporate "pre-existing elements of the environment," including garage air vents (which I'm not sure but I believe are missing at Monticello). Whatever one may think of Kelley's work, it's impossible to deny the spark of creativity that led to it.

2. As an alternative holding, the court, without much analysis, followed the First Circuit in Phillips v. Pembroke in finding that VARA simply does not protect site-specific art. I discussed the Phillips decision here. The gist of that discussion was that, while a reasonable argument can be made that VARA doesn't prevent the removal of a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. Kelley's work serves as a good example. Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things? What does the work's site-specificity have to do with any of that?

One last point, for the don't-believe-everything-you-read file. An interim decision in the case about a year ago was widely reported as a victory for Kelley, though "the judge ha[d] yet to determine the damages." (See here, here, here, and even this guy.) Actually, that decision merely held that Kelley's work -- an arrangement of living plants -- could theoretically be protected by VARA. That "victory" now turns out to have been short-lived.

Judd Tully has a piece in the October 2008 issue of Art+Auction on "the little-known but widespread practice of so-called artist/gallery resale agreements in primary market transactions" -- which "basically require or request the buyer to agree, in writing or otherwise, to give the gallery or artist the right of first refusal, usually for a limited time, when the work is about to be resold." My partner John Silberman is quoted:

"A number of dealers and players in the market believe that resale agreements are unenforceable, but several prominent attorneys contradict that notion. 'I do believe they are enforceable,' says John Silberman, a leading New York entertainment and intellectual-property lawyer. 'You just have to do it right and make it very clear.'"

One last link to the New York Sun, which will be missed. On Monday, Kate Taylor had an update on the disputes involving the works of outsider artist Martín Ramírez. Apparently the litigation involving 17 works owned by Maureen Hammond is "close to settlement," but now "the estate is looking into its possible rights to other Ramírez works, including [10 in the collection of] the Guggenheim." The overall state of play is as follows:

"Last year, when a trove of 144 previously unknown drawings came to light, the artist's heirs, who include a daughter in Mexico and 17 grandchildren, formed an estate and got legal representation. As a result of negotiations between the estate and the family in possession of the drawings — the descendants of a doctor who treated Ramírez at one of the mental hospitals — the estate now retains an interest in the works, which are being sold through the Ricco/Maresca Gallery, for prices that range from $50,000 to $350,000. Neither Frank Maresca, who is one of the owners of the gallery, nor a laywer for the estate, Eric Lieberman, would say what percentage of the proceeds the estate will get."

If you want to see what all the fuss is about (remember, Roberta Smith calls him "simply one of the greatest artists of the 20th century"), related exhbitions of Ramírez's "last works" are about to open at the Ricco/Maresca Gallery (tomorrow) and the American Folk Art Museum (next week).